Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA080906, Allen J. Webster, Jr., Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Following the denial of his motion to suppress evidence, Earnest Dudley Heron pleaded no contest to one count of possession for sale of cocaine base. On appeal Heron contends his motion to suppress evidence should have been granted because the cocaine base and other evidence seized by police were the product of an unlawful entry upon his property. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution Evidence at the Suppression Hearing
At approximately 9:00 p.m. on June 23, 2005, Los Angeles Police Officer John Jamison and his partner were on routine patrol in a marked patrol car. Jamison saw Heron and another person on the sidewalk outside the house at 241 West 90th Street (241 house). The previous night Jamison had chased and arrested an armed gang member at the same address.
The front of the 241 house is bordered by a wrought iron fence with a gate. There are yards on the east and west side of the house; both yards are visible from the street. When Heron noticed the approaching police car, he appeared startled and began to run. Officer Jamison and his partner left the patrol car and “tracked” Heron through the east side-yard toward the rear of the property, where there was a second house. Jamison trained his flashlight continuously on Heron in case Heron was armed. Jamison followed Heron into the east side-yard where he saw Heron toss a clear plastic baggie containing an off-white powdery substance that appeared to be rock cocaine. The baggie landed near a bush in the backyard of the 241 house and was retrieved by another officer.
2. Defense Evidence at the Suppression Hearing
Heron testified that on June 23, 2005 he lived in his girlfriend’s house at 239 West 90th Street (239 house), which was located behind the 241 house. The 241 house was vacant and had become “a gang banger’s [sic] hang out.” It is possible to access the 239 house by walking through the east side-yard of the 241 house.
According to Heron, he was inside the 239 house having dinner when he heard noise on the west side of the house. As he stepped out on his porch, police officers ran up from the west side-yard and immediately ordered Heron to freeze and directed him to sit on the porch and keep quiet. The officers then apprehended “some other guy” and arrested Heron. Heron testified he had not been standing outside the 241 house that evening, had not run from officers and had not thrown a plastic baggie.
3. The People’s Rebuttal Evidence
In rebuttal Officer Jamison testified it could not be determined whether Heron threw the baggie into the yard of the 241 house or the 239 house: The backyard of the 241 house became the front yard of the 239 house; there was no fence dividing the property.
4. Denial of the Suppression Motion and Heron’s Plea
The trial court denied Heron’s suppression motion, finding Heron’s version of the events was not credible and Officer Jamison’s entry into the east side-yard and recovery of the contraband did not implicate Heron’s Fourth Amendment rights. Heron then pleaded no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The court suspended imposition of sentence and ordered Heron to complete three years of formal probation.
CONTENTIONS
Heron contends the officers’ entry into the east side-yard violated his Fourth Amendment rights and, therefore, the rock cocaine seized following that entry should have been suppressed. The People contend the officers’ entry was lawful because Heron did not have a reasonable expectation of privacy in the east side-yard.
Heron does not claim his unprovoked flight in front of a house where armed gang members were known to congregate failed to support a reasonable suspicion he was engaged in criminal activity (see Illinois v. Wardlow (2000) 528 U.S. 119, 124 [120 S.Ct. 673, 140 L.Ed.2d 570]; People v. Souza (1994) 9 Cal.4th 224, 225). Instead, Heron argues the facts of this case do not establish exigent circumstances justifying a warrantless entry by police into his curtilage to prevent imminent harm, escape or destruction of evidence. (See Mincey v. Arizona (1978) 437 U.S. 385, 392 [92 S.Ct. 2408, 57 L.Ed.2d 290]; People v. Ray (1999) 21 Cal.4th 464, 468-472.) We need not decide whether the officers were properly acting on exigent circumstances because we conclude they did not invade Heron’s curtilage by going into the east side-yard.
The People failed to require Heron to establish his privacy interest in the east side-yard during the presentation of evidence at the suppression hearing. Although it was Heron’s burden to prove his reasonable expectation of privacy in the east side-yard (Minnesota v. Carter (1998) 525 U.S. 83, 88 [119 S.Ct. 469, 142 L.Ed.2d 373]), it was the prosecution’s burden to raise the issue; and failure to do so generally operates as a waiver or forfeiture. (Steagald v. United States (1981) 451 U.S. 204, 209 [101 S.Ct. 1642, 68 L.Ed.2d 38]; People v. Henderson (1990) 220 Cal.App.3d 1632, 1641.) However, because the trial court raised the issue in its tentative ruling and the parties referred to it during argument, the issue has been preserved for appeal. (People v. Dasilva (1989) 207 Cal.App.3d 43, 48; People v. Thompson (1990) 221 Cal.App.3d 923, 934-937.)
DISCUSSION
1. Standard of Review
In reviewing the denial of a motion to suppress, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence (People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
2. General Legal Principles
The Fourth Amendment protects from unreasonable search and seizure only those areas in which a person has a reasonable expectation of privacy. (United States v. Knights (2001) 534 U.S. 112, 118 [122 S.Ct. 587, 151 L.Ed.2d 497]; People v. Freeman (1990) 219 Cal.App.3d 894, 900.) In addition, Fourth Amendment rights are personal and may not be vicariously asserted. (Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [99 S.Ct. 421, 58 L.Ed.2d 387].) A defendant’s right to challenge a search or seizure is determined by examining whether the proponent of the motion to suppress has had his or her own Fourth Amendment rights infringed by the questioned conduct. (Id. at p. 133.)
To claim a Fourth Amendment protection, therefore, a defendant must manifest not only his or her own subjective expectation of privacy in the particular place, but also an expectation that society is prepared to recognize as reasonable. (Ohio v. Robinette (1996) 519 U.S. 33, 39 [117 S.Ct. 417, 136 L.Ed.2d 347]; People v. Thompson (1990) 221 Cal.App.3d 923, 942 (Thompson).) “In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” (Ohio, at p. 39.)
As a general rule, police officers have no right to make a warrantless entry into a home or its curtilage. (United States v. Karo (1984) 468 U.S. 705, 714 [104 S.Ct.3296, 82 L.Ed.2d 530].) Curtilage is the outside area “immediately surrounding and associated with the home . . . to which extends the intimate activity associated with the ‘sanctity of a [person’s] home and the privacies of life.’” (Oliver v. United States (1984) 466 U.S. 170, 180 [104 S.Ct. 1735, 80 L.Ed.2d 214]; People v. Mayoff (1986) 42 Cal.3d 1302, 1314.) “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” (California v. Ciraolo (1986) 476 U.S. 207, 213 [106 S.Ct. 1809, 90 L.Ed.2d 210].) Nonetheless, not every warrantless entry by police upon curtilage to arrest or to detain implicates the Fourth Amendment. “‘[T]he [California] Supreme Court has made clear that a police officer who makes an uninvited entry onto private property does not per se violate the occupant’s Fourth Amendment right of privacy. The criterion to be applied is whether entry is made into an area where the public has been implicitly invited, such as the area furnishing normal access to the house. A reasonable expectation of privacy does not exist in such areas. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626. . . .)’ [Lorenzana] [Citation.] [¶] . . . “‘[T]he test of reasonableness is dependent upon the totality of facts and circumstances involved in the context of each case [citations] and does not turn merely upon whether a physical trespass is manifested [citations].”’ [Citation.]” (Thompson, supra, 221 Cal.App.3d at p. 942; People v. Zichwic (2001) 94 Cal.App.4th 944, 953 (Zichwic).)
3. Heron Did Not Have a Reasonable Expectation of Privacy in the East Side-yard
Whether or not the east side-yard where Officer Jamison pursued Heron and saw him toss the baggie containing cocaine base was within the curtilage of the 241 house, which faced the public sidewalk and street, Heron had no reasonable expectation of privacy with respect to that house or its grounds and, in fact, does not claim he does. (See Rakas v. Illinois, supra, 439 U.S. at p. 133.) Based on the record before the trial court, the east side-yard cannot reasonably be considered within the curtilage of the 239 house, where Heron did live, because it was an area to which the public had been, at least implicitly, invited.
First, there was absolutely no evidence that public view of the east side-yard or access to it was restricted in any fashion. Although the yard was enclosed by the wrought iron fence in front of the 241 house, one could, as the officers did, readily see into it through the fence from the public sidewalk. (See People v. Deutsch (1996) 44 Cal.App.4th 1224, 1229 [“[i]nformation or activities which are exposed to public view cannot be characterized as something in which a person has a subjective expectation of privacy, nor can they fulfill the second prong of [the reasonableness test] -- as being that which society reasonably expects will remain private”].) Moreover, the officers apparently followed Heron into the east side-yard through an open gate and encountered nothing either obstructing their pursuit or indicating entry into the east side-yard was restricted. (Cf. People v. Winters (1983) 149 Cal.App.3d 705, 707 [officers invaded constitutionally protected privacy right by going into backyard of home through closed gate posted with private property/no trespassing/no soliciting sign].)
Second, based on Heron’s testimony, the trial court could reasonably infer the yard was an unsecured and anticipated pathway to the 239 house, not an area reserved for private purposes. “A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there.” (Lorenzana, supra, 9 Cal.3d at p. 629; People v. Edelbacher (1989) 47 Cal.3d 983, 1015 [officer’s observation from “front porch, driveway, and front yard portion of residences” did not violate Fourth Amendment]; Zichwic, supra, 94 Cal.App.4th at p. 1015 [officer’s plain view observation not a constitutionally proscribed search because defendant’s driveway, front porch and front yard were “the normal route used by visitors approaching the front doors”]; United States v. Garcia (9th Cir. 1993) 997 F.2d 1273, 1279-1280 [no Fourth Amendment violation when areas of residence like driveway and parking area readily accessible from public place]; United States v. Magana (9th Cir. 1975) 512 F.2d 1169, 1171 [area constituting normal route of access and egress for anyone visiting the property enjoy less protection as “only a semi-private area”].) Had a salesperson or Heron’s family or friends arrived outside the 241 house that night, they would have taken the same route followed by Officer Jamison to reach the 239 house. As a result, neither Jamison’s pursuit of Heron nor the subsequent seizure of the baggie Heron discarded constituted a violation of the Fourth Amendment. (California v. Ciraolo, supra, 476 U.S. at p. 213.)
Indeed, Heron testified the 241 house was a known gathering place for gang members whose actions on the property he was unable to control.
Heron’s reliance on People v. Camacho (2000) 23 Cal.4th 824 is misplaced. In Camacho police officers walked into the defendant’s side yard, which had no walkway or entrance, and peered into a window where they saw the defendant packaging narcotics. Unlike the east side-yard in this case, the side yard in Camacho was not used as a thoroughfare to a rear house. In addition, the court in Camacho found it significant the officers had “perceived nothing amiss” when they arrived but nonetheless proceeded to the side yard and looked inside the house. (Id. at p. 838.) By contrast, Officer Jamison and his partner were prompted to follow Heron by his unprovoked flight into the east side-yard where, from a lawful vantage point, they saw him discard the narcotics in plain view. (See Horton v. California (1990) 496 U.S. 128, 136 [110 S.Ct. 2301, 110 L.Ed.2d 112]; see also Thompson, supra, 221 Cal.App.3d at pp. 944-945 [officers’ warrantless entry into defendant’s backyard reasonable under circumstances even though not by way of “normal route of access for anyone visiting the premises”; because no evidence suggested “the officers created an artificial vantage point from which to further observe activities on the premises,” this court could not say “‘the limited deviation, within the open area, that occurred in this case was so unreasonable as to be an intrusion upon a privacy expectation deserving of Fourth Amendment protection . . . .”].)
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J. ZELON, J.